Sexual Assault Cases in the Supreme Court of Canada: Losing Sight of Substantive Equality?
The equality guarantee contained in section 15 of the Canadian Charter of Rights and Freedoms has prompted reforms that protect women as complainants in sexual assault cases. This paper considers the effectiveness of these reforms. Part II supplies a history of the relationships between consent, trial procedure and substantive equality in sexual assault law. I argue that substantive equality has had a significant effect on both substance and procedure. Part III examines the impact of these reforms by considering the extent to which substantive equality has infused judicial reasoning and fact determination in contested sexual assault cases. Specifically, I focus on the factual reasoning in the three sexual assault cases decided by the Supreme Court of Canada in 2011 (R. v. A. (J.A.); R. v. A. (J.); R. v. H. (J.M.)). My analysis shows that substantive equality reasoning has not yet infused judicial approaches to fact determination in sexual assault cases, and that individual complainants are not yet fully protected against the operation of myths and stereotypes when consent or credibility is at stake. I suggest in conclusion that the Court has a leading role to play in moving judicial reasoning towards a more egalitarian approach to fact determination.
"Sexual Assault Cases in the Supreme Court of Canada: Losing Sight of Substantive Equality?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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